The Philadelphia School District can’t dodge a First Amendment case with qualified immunity, the Third Circuit has ruled.
The school district and several administrators who are named as defendants in the suit had filed an interlocutory appeal after the district court denied their motions for summary judgment based on their claim to qualified immunity in a case brought by a former administrator, Francis Dougherty, who alleged that he was fired in violation of the First Amendment and Pennsylvania’s whistleblower law after he revealed a no-bid contract to the press.
Dougherty was the deputy chief business officer for the district in 2010 and was assigned to a project that would install security cameras in 19 of the district’s “persistently dangerous” schools, according to the U.S. Court of Appeals for the Third Circuit’s opinion, which was written by Judge D. Michael Fisher.
The superintendent of the district at the time, Arlene Ackerman, gave Dougherty the project in September and it was to be finished within two months, which allowed them to skip the bidding process and pick a contractor that would be considered “pre-qualified,” meaning that it had won a contract with the district or another state agency through a competitive bidding process, according to the opinion.
Ackerman rejected Dougherty’s suggestion for a pre-qualified company and instead presented a minority-owned company that was not pre-qualified to the School Reform Commission for approval. Dougherty later went to The Philadelphia Inquirer, which published a story in November 2010 about the contract, according to the opinion.
After the story ran, the school district hired the law firm of Pepper Hamilton to investigate the project. That report found that Dougherty had violated the district’s code of ethics when he emailed information about the project. He was fired in the spring of 2011 and brought suit the next year, alleging that the move was a violation of his right to free speech as well as Pennsylvania’s whistleblower law.
The district claimed qualified immunity, but failed to persuade the district court judge that it was due.
The qualified immunity test requires the court to determine whether the district’s conduct violated a constitutional right and whether that right was clearly established.
The school district argued Dougherty’s position didn’t afford him the protections of the First Amendment, but the appeals court held the district had tried to stretch the U.S. Supreme Court’s 2006 opinion in Garcetti v. Ceballos too far. In that case, the high court had ruled that public employees who speak in their official capacities aren’t entitled to First Amendment protection.
“They replace Garcetti‘s ‘pursuant to official duties’ test with one that precludes First Amendment protection for speech that ‘owes its existence to a public employee’s professional responsibilities,’” Fisher said.
The judge then referred to his own court’s 2009 opinion in Gorum v. Sessoms, which addressed the standard to be met by public employees bringing a First Amendment retaliation claim.
“After plucking Garcetti‘s language to canonize a new standard, appellants rely on Gorum to argue that, because the content of Dougherty’s speech was gained from ‘special knowledge’ and ‘experience’ with the camera project entrusted to Dougherty, his speech ‘owes its existence to’ his professional duties.”
“These arguments ask us to read Garcetti far too broadly,” Fisher said. “This court has never applied the ‘owes its existence to’ test that appellants wish to advance, and for good reason: This nearly all-inclusive standard would eviscerate citizen speech by public employees simply because they learned the information in the course of their employment, which is at odds with the delicate balancing and policy rationales underlying Garcetti.”
The Third Circuit also concluded that Dougherty’s right to First Amendment protections was clearly established.
“In the case at bar, Dougherty’s particular type of speech—made as a concerned citizen, purporting to expose the malfeasance of a government official with whom he has no close working relationship—is exactly the type of speech deserving protection under the Pickering and Garcetti rules of decision and our subsequent case law,” Fisher said, referring to the U.S. Supreme Court’s 1968 opinion in Pickering v. Board of Education, which requires the court to balance Dougherty’s interest as a citizen in speaking about issues of public concern with the interest of the school district as an employer in efficiently running its public service through its employees.
“The more tightly the First Amendment embraces the employee’s speech, the more vigorous a showing of disruption must be made by the employer,” Fisher said.
The Pickering balance tipped in Dougherty’s favor, the Third Circuit ruled.
Lisa Mathewson, who has a practice in Philadelphia, represented Dougherty and said, “We’re pleased that the Third Circuit is allowing the case to move forward to a jury.”
The Tucker Law Group represented the individual defendants who appealed.
Will Rosenzweig of Blank Rome represented the estate of Ackerman and couldn’t be reached for comment.
(Copies of the 26-page opinion in Dougherty v. School District of Philadelphia, PICS No. 14-1881, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •